Rayney v WA [No 3]

[2010] WASC 83

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Amendment of pleadings
3. › Amendment of writ of summons
4. › Whether new cause of action introduced
5. › Whether amendment arises out of same or substantially same facts
6. › Defamation action
7. › Earlier publications relied upon as context not independent causes of action
8. › Rules of the Supreme Court 1971 (WA), O 21 r 5(5)
1. Limitation of Actions
2. › Extension of time
3. › Defamation
4. › Whether residual discretion to extend time
5. › Structure of Limitation Act 2005 (WA), Pt 3 div 3
6. › Whether s 40 confers general discretionary power beyond mandatory duty in s 40(2)
7. › Limitation Act 2005 (WA), ss 15, 38, 39, 40, 41, 42, 44
1. Limitation of Actions
2. › Extension of time
3. › Defamation
4. › Burden of proof
5. › Whether not reasonable to have commenced within one year
6. › Distinction between 'not reasonable to commence' and 'not unreasonable not to commence'
7. › Limitation Act 2005 (WA), ss 40(2), 79
1. Statutes
2. › Construction
3. › Uniform legislation
4. › Model Defamation Provisions
5. › Whether different verbal formulations across jurisdictions preclude uniform construction
6. › Defamation Act 2005 (WA)
7. › Limitation Act 2005 (WA), s 40

Quick Take

Section 40 of the Limitation Act 2005 (WA) does not confer a residual discretion to extend the limitation period for defamation actions; the court's power is limited to the mandatory duty in s 40(2). An amendment to a writ that introduces earlier publications relied upon only as context for the primary defamatory publication, rather than as independent causes of action, arises out of substantially the same facts and does not introduce a new cause of action barred by the limitation period. The burden under s 40(2) requires the plaintiff to establish that it was not reasonable to have commenced within one year — not merely that it was not unreasonable not to have commenced.